Planning and Development Reform

UNISON Scotland's response to the Making Development Plans Deliver and Rights of Appeal in Planning Consultations

July 2004
 

Executive Summary

* UNISON Scotland welcomes these consultations as the main trade union representing staff in local government and planning staff in particular. We have linked our response to these consultations as the issues are closely connected.

* The key reform to the planning process is establishing a properly resourced and supported planning service in every local authority. Staffing levels have remained largely unchanged for a decade despite a 20% increase in applications and other pressures on the system.

* Development plans need to be properly linked into the community planning system with a greater emphasis on the participation and involvement of the community at an early stage. The community needs feedback to demonstrate how their views impact on the process.

* Business and other public bodies also need to engage earlier in the system. All too often business relies on using their financial clout to influence the process at public inquiries.

* National and regional forums should be established to oversee the development of policies that include all the key stakeholders and address cross boundary issues.

* There are a number of technical and procedural changes highlighted in this submission that would assist in speeding up the process.

* In the context of a reformed development plan process UNISON remains unconvinced of the case for extending appeal rights. We would support consideration of a more radical approach that would curtail existing appeals rights as well.

* This approach is based on the principle that planning decisions should be the preserve of democratically elected local authorities. This would require local authorities to engage applicants and objectors in a meaningful way throughout the process.

* External involvement by the Scottish Executive and appeals would be limited to cases involving strategic national interests and decisions in which the planning authority has an interest.

Introduction

UNISON is Scotland's largest trade union representing over 145,000 members working in the public sector. We are the largest trade union in local government, with over 98,000 members working in Scottish Local Government. UNISON represents local authority planning staff. Other members have a direct interest in the system such as infrastructure providers in water and energy as well as a wider citizenship interest in promoting economic development and protecting the environment

The Scottish Executive's coalition agreement ‘Partnership for a Better Scotland ‘ includes a number of commitments to reform the planning system. Planning delays have also been criticised by developers and on the reverse side of the coin by objectors who feel the system is not responsive to local concerns. In response the Executive has published two consultation papers on development plans and third party appeals. A Planning Bill is also likely later in this parliamentary session.

UNISON Scotland believes that these two consultations are linked. Any consideration of third party rights of appeal has to be viewed in the context of the planning system as a whole.

Making Development Plans Deliver

Background

This consultation seeks views on the preparation of local development plans (LDPs) across Scotland and the detailed arrangements for strategic planning in the four main city regions.

Specifically, it seeks views on:
* Managing the plan process
* Consultation and engagement
* Content of the plans
* Ensuring effective delivery
* Local development plans and city region plans

Response to questions in consultation paper.

Q1 What are the most important factors in the successful management of development planning?

The paper argues there is a need to reform because development plans are often out of date. Of 131 local plans 70% were adopted more than five years ago and 20% are more than 15 years old. There appear to be a number of reasons for the delay in completing plans, not least the many objections from developers promoting their particular schemes. Local authorities are also moving towards single area plans that are likely to halve the number of development plans.

The most important factors are to ensure that the teams preparing the development plan are properly resourced, especially if more community involvement is to be provided. The team preparing the local development plan and the city region plans should be separate entities and be separately managed. The idea of a joint board, if following the Clyde valley or Ayrshire model is to be welcomed. The planners require to be backed up by admin, clerical, technical and ICT support.

Despite these workload pressures 83% of applications are decided within a period of three months against a target of 85%. The reasons for delay are not always within the control of planning departments. Poor applications, the need to reconcile differing community views and the increasing complexity of planning are important factors.

The local development plan should be seen as the lead document on land use planning. There requires to be more clarity about what a community plan is (a point highlighted in the recent implementation report) and how it links into the process. UNISON strongly supports Community Planning as one way of encouraging greater co-operation between public authorities on our Public Service Networks model. Other economic initiatives and other plans all need to link in.

There is a plan fatigue around and a lack of understanding amongst the general public about how everything links together. There needs to be clear indications of the area to be covered by the city region plans and the Scottish Executive should be involved in this discussion, especially within an area where only two authorities are involved. There is a danger of not taking proper account of the pull of other areas. Even in the central belt can Glasgow really be considered without Edinburgh?

Q2 Should development plan schemes indicate timetables for plan preparation to provide some certainty for stakeholders?

There is a need for a timetable, but it requires to be realistic, open and deliverable. It should be agreed through negotiation with the local community and should not be influenced by performance indicators or the desires of big business. Although there is a role for guidance from the Scottish Executive.

Each plan making process should follow an agreed project plan that identifies the staff requirements and whether outside support is to be bought in. The timetable should include adequate time for realistic public consultation and this should include innovative and new methods as well as the more traditional methods. Part of the current plan process problems are that it sees public consultation as difficult and time consuming and therefore some authorities only give it lip service. If as we will argue later democratic accountability should be a key planning principle it is vital that local authorities embrace real participation and involvement of the community in the planning process.

Q3 What are the most effective ways to ensure quick preparation and review of development plans

Ensure that the team preparing and reviewing the plan is properly resourced with adequate technical, admin and ICT support. A statutory duty to update plans will only work if these are in place and audited.

Engage early with the local community and stay engaged with them. Ensure that national planning policies are up to date and can be incorporated easily into the plan and that the public consultation stage is not dominated by lawyers with their own agenda.

Consider introducing mediation sessions instead of a full blown public local inquiry that can put developers back on an equal footing with the community. If a consultative draft is to be removed then the notification process to affected landowners needs to be clear and transparent and the method of community engagement needs to be understood and agreed by the community.

Q4 Do you agree that early-targeted consultation on the key issues should replace consultation on draft policies and proposals?

This would certainly speed up the process, but would need to ensure that Planners were involved in these early key consultations. In some authorities Planners are currently not fully involved with the community planning process. It is critical that Councils have an ongoing method of community involvement that continues to feed into the development plan process on a regular basis. It also then becomes critical that the community can see how their comments are impacting on the plan process and that they get adequate feedback. Other stakeholders and planning processes including utility infrastructure plans could be included.

Q5 Should other bodies have a duty to engage in development
planning placed upon them?

This is critical as some of these bodies tend to react to the planning process rather than being a proactive contributor. In particular local enterprise companies. The wider involvement of public bodies in the community planning process should be extended to land use including health boards.

Q6 Do you have any suggestions for improving the involvement of businesses in the development plan process?

Businesses require to be engaged in the process and required to work with communities and Planners at an early stage. Currently they all too often wait until the process reaches PLI and then use their financial clout to employ counsel to disrupt and change the direction of the process.

Providing plan information in a form that engages the business community at the earliest opportunity and keeps them engaged is a challenge. There is a need to change the business perception of Planning as a profession. This requires an Executive led change in attitudes along similar lines to that currently given to Social Work.

Q7 Do you agree that the certified copy of the plan should remain a paper copy?

Words on paper have been around for over 500 years and the new ICT world has not swept it away. Paper copies are accessible to all, not with standing the implications of disability for some. Copies of the plans need to be available in a number of different formats including paper, electronic, recorded and Braille or other languages as appropriate.

Q8 Do you agree that a development plan forum should be formed to support plan making?

The sharing of information is vital. There should be a forum at a national level to oversee the development of national policies. This should have representation from local authorities and other stakeholders including the STUC, individual unions and business interests as well as the professional through the RTPI.

Regional forums covering say the north, south and central should also be established to encourage greater co-operation between councils.

Q9 Do you agree that action planning is a continual process with formal publication of an action plan every two years?

We agree that plan making requires to stay up to date. However there is a danger that if we continually engage in plan making, we may never actually implement any of the actions within the plan. There is also the fear that if a Planner is continually plan making but never seeing the implications or having to implement anything they may loose touch with the real world.

The plan making process requires to be grounded in what the communities want and there needs to be a clear understanding of the implications of the decisions that are made. Plan making can not be carried out in a bubble where policy development is seen as a desk exercise. Time needs to be allowed for Planners to get out on the ground and engage fully with the community.

Action planning seems to be a good way around this as it includes both policy preparation and action planning. This will only work though if there are an adequate number of staff to carry out the process and that other bodies and parts of the council are linked into the process.

Q10 Outside the city regions, do you support the provision for an area wide local development plan to set the overall context in areas where there continues to be a mosaic of local development plans?

This is to be welcomed and will provide a good way forward that is more understandable to the local communities. More guidance would be required on what constitutes supplementary guidance and the resources that will be required to provide this. There is a fear that Councils reduce their planning staff preparing policy plans to the bare minimum and then outsource the supplementary guidance preparation to consultants. There needs to be proper guidance on how supplementary guidance will be consulted on and how it fits into the process. There needs to be clear guidance on what should be included within the plan.

Q11 Do you agree that, where it can be demonstrated that there has been community and stakeholder consultation, supplementary guidance should have statutory backing?

Yes, but we need to be careful about what is removed from plans.

Q12 Do you support greater consistency in the style of plans, particularly proposals maps?

Yes, as this removes one area of objections that sometimes delays plan process. This should be part of the role of the national planning forum.

Q13 Under what circumstances should local authorities be allowed to depart from the reporter's recommendations on the local development plan examination?

Under the current arrangements never, otherwise the process of involving reporters looses all credibility. If a plan requires to be changed after a reporter has made a ruling it should go through the normal processes.

Q14 Do you agree with the proposed content of city region plans?

The focus on strategic spatial issues is important. There requires to be a proper understanding of where a cities sphere of influence is and a recognition that this does not adhere to traditional council boundaries. City region plans by their very nature are going to be cross boundary.

Q15a Should there be equal representation of local authorities on the joint committees?

In principle representation on the joint committees should be on an equal basis. This could not be limited to two in smaller joint committees. The joint committees need to have some method of meeting with and sharing information with each other, possibly through the regional forums discussed above, specifically where the sphere's of influence of each city overlap. It could be argued that Glasgow and Edinburgh's sphere of influence covers the whole of Scotland and there are certainly areas of overlap between Dundee and Aberdeen.

Q15b How should costs be divided among local authorities on the joint committee?

Should be equally proportioned. Each council should directly employ members of the joint planning team with appropriate management arrangements. Adequate resources should be provided so that the city region plan can be prepared properly and that the local development plans are also resourced.

Q16 Do you consider the proposed approval process will be quick and transparent?

Its difficult to say until the first plan is prepared. The trust in the system will fall at the first hurdle if the process does not stick to its timetable. It would be useful to see this process as a timeline to provide better clarity and understanding. Good Information Technology systems would help.

Q17 Are the proposed transitional arrangements appropriate?

They would appear to be satisfactory.

Other comments

The key to a reformed development plan process is a properly resourced and well trained planning service that has political support and presented in a positive light. There are also increasing pressures on planning departments due to a 20% increase in the number of planning applications. Staffing numbers have remained largely unchanged for a decade and many departments are reporting staffing shortages. Many councils have run down their planning services and focus on the bare minimum provision.

Planners come under equal pressure from developers who complain about a negative anti-development culture and objectors seeking to block development ‘in their backyard'. As always public servants are caught in the middle!

Government has to recognise that there needs to better community involvement and that the planning profession needs to be at the cutting edge of the changes to the environment. What we do today impacts on the world that we live in tomorrow.
 

Rights of Appeal in Planning

Background

This consultation seeks views on whether new rights of appeal should be created for third parties. At present only applicants can appeal. And if so, how they might operate in practice. In particular, it seeks views on: The support for widening rights of appeal, extending rights to third parties, the role of Scottish ministers and the impact on the workload of planning authorities.

In addition to this consultation, Sandra White MSP has a private members bill on the same issue. Other parliamentary activity includes motions from Donald Gorrie MSP on vetting developers and providing a right of appeal for local authorities against a Reporter's decision.

The supporters of third party appeals argue that the current system is unbalanced in favour of developers allowing no recourse for communities campaigning against unjust planning decisions. The focus of the planning system is the relationship between local authorities and developers rather than community groups and individuals. They point to the experience of Ireland where only 2.6% of applications have been appealed, many only seeking a design change.

Those against third party appeals argue that it would add further delays to the planning system, blocking essential economic development. The objectors would in the main be the NIMBY groups, unrepresentative of their local communities. It would also be undemocratic because councillors make these decisions as the elected representatives of the community. It would significantly add to the costs of development and place a further administrative burden on planning departments.

Response to questions in the consultation

Q1 Does the consultation report accurately reflect the arguments for and against third party rights of appeal?
Q2 Does the report accurately reflect what supporters are seeking in a new appeal process?

The arguments are fairly set out although more research could have been included on the experiences of those involved in the current process and greater linkage with the development plan consultation. In our view the two issues are closely linked.

If significant improvements are made in the development plan process as set out above then much of the case for third party appeals can be addressed. However, the same could also be said for appeals against a decision of a local authority. Reforming those current arrangements are not properly addressed.

In UNISON's view the paper could have placed more emphasis on the case for recognising the role of local authorities as the democratically elected representatives of the local community. In this context the need for local authorities to be open and transparent and to extend democratic accountability through meaningful participation and involvement of all stakeholders is essential. Recent reform including changes to the voting system and widening access to councils may contribute to this.

Q3 Should any third party rights of appeal be restricted to some or all of the categories subject to consultation

There is clearly a technical argument in support of the second category (approvals contrary to the development plan) because these result in approvals on a basis that has not been the subject of impartial review through the development plan process. A key element is of course the need to have updated development plans as discussed above. However, the paper should have asked if there is a case to remove all rights of appeal in cases where the decision is in accordance with an up to date development plan.

For UNISON the key point is recognition that local authorities represent communities and their decisions should be respected subject to due legal process and meaningful involvement of all stakeholders in the development plan. We question if an appeal to an unelected official (The Reporter) is compatible with democratic accountability.

Developments in the first category (developments in which the planning authority has an interest) are already subject to supervision by the Scottish Executive who may and do call them in for determination. In these cases the system should ensure that all stakeholders have equal right of appeal.

Council members do overturn recommendation of officers (the third category) and we are not convinced that this is a justification for appeal by any party. It is the task of officers to advise and recommend. Councillors take the decision and are rightly accountable to the electorate for those decisions through the ballot box. The introduction of appeal rights in these circumstances would undermine the trust between officials and members which is essential for the effective functioning of local government.

We are also unconvinced that the case for rights of appeal in relation to EIAs (category 4)is made. The concerns of all stakeholders about these matters should be addressed through greater consultation and public information on environmental risks, not through the planning system.

Q4 Which planning decisions should be capable of appeal?

UNISON believes that a reasonable case can be made for abolition of most rights of appeal. The case for third party rights is strengthened by the apparent imbalance in rights. The question should address the need for any appeals in a reformed development plan system.

Q5 Who should have a right of appeal

One of the strengths of the current system is the extent to which objections and the views of developers are taken into account in reaching decisions. Whilst there is no statutory requirement most planning authorities give detailed reasons for granting consent, often including minor applications, particularly when objections are lodged.

Any right of appeal should be limited to those who lodged a formal objection prior to a decision being taken. Anything short of this would undermine the democratic process.

Q6 Do you support in principle the introduction of a wider right of appeal?

We are not convinced of the merits of most grounds of appeal for the reasons set out above. The case might be stronger if the development plan process is not reformed.

Q7 How would the planning service at both planning authorities and the Scottish Executive be placed to manage the likely increase in workload?
Q8 Would there be any implications for the attractiveness of planning as a career?

This would be a major concern to staff in planning departments if third party appeals were introduced. As described above staffing levels have remained largely unchanged in a decade despite a 20% increase in planning applications. Many departments are struggling to fill existing vacancies and some planning work is being undertaken by unqualified staff.

We need to move away from the adversarial aspects of all planning appeals and inquiries towards a more democratic and participative system that properly uses the professional skills of planning officers. At present they are all too often attacked from all sides making the profession less attractive to graduates.

An increase in appeal workload will inevitably result in a transfer of staff from development planning and other planning functions where the priority ought be. This will undermine efforts to promote more involvement at an early stage of the process with all the stakeholders.

Q9 Should a fee be payable by objectors (Model 1)

There does not appear to be any reasonable argument that a fee would deter the current level of objectors and therefore any new right of appeal. A frivolous and vexatious provision may be justified together with procedural requirements such as a full statement of case and time limits..

Q10 Should Scottish Ministers retain their role in deciding particular appeals, or should SEIRU decide all appeals? (Model 1)

Referring more decisions to appointed Reporters would further undermine democratic accountability. The Scottish Executive's focus should be on supporting planning guidance through new forums (see above) and genuine issues of strategic national interest e.g. energy policy.
 

Q11 Would the introduction of mandatory public hearings in defined circumstances increase public confidence in planning authorities' decisions? (Model 3)

When conducted well hearings held by local authorities greatly improve transparency in decision taking. Submissions by objectors can and do result in planning committees modifying the recommendations of professional officers. This may well increase public confidence in the planning system, although it is important that they do not turn into another legalistic forum.

Q12 Would extending the circumstances in which Scottish Ministers are notified to include all development plan departures sufficiently address concerns about decisions contrary to plan departures? (Model 3)

Notification of departures should not be extended, for the reasons set out in the consultation paper. Notification is to enable the Scottish Executive to ‘call in' decisions which could affect genuine national strategic interests. It is not an appropriate function of the Scottish Executive to supervise another democratically elected body with the possible exception of developments undertaken by the planning authority.

Q13 Would it be appropriate to introduce a screening process for planning appeals ? (Model 4)

It is difficult to see how a screening process would work although this model does at least address the possibility that the current right of appeal could be limited.

Q14 Are there circumstances in which any right of appeal should be withdrawn?

As argued above we believe that there is merit in withdrawing the right of appeal current available to applicants. However, if appeal rights were extended there is a risk that any geographical restriction would restrict legitimate objections. These could include national bodies and pressure groups or even individuals with a legitimate interest in the geographical area.

Q15 Views on each of the models outlined - or alternative packages

UNISON remains unconvinced that extending appeal rights is appropriate to what should be a democratic process. However, that argument applies to the existing appeal rights of applicants as much as it does to objectors.

An alternative approach is to reform the development plan process as described above together with a revitalised approach to genuine democratic involvement of all stakeholders by local authorities. This can only be achieved through properly resourced and supported planning services. Better training for elected members would be an important element of this reform.

The only exceptions to this democratic principle would be applications where the local authority has an interest or when the Scottish Executive has to intervene for strategic reasons or when local authorities with a genuine interest differ. There is no appeal against decisions of the Scottish Parliament (except by judicial review) so why should democratically elected local authorities be treated differently.

This radical approach does of course require many local authorities to raise their game in terms of public involvement and support their planning services. Properly delivered it would ensure that the collective interests of the community are put first. Not the private (often financial) interest of many objectors or the interests of commercial developers who may have little interest in the community other than financial gain.